Judiciary Power and Practice - The war powers resolution

Photo by: Sandra Kemppainen

While the commander in chief role of the president has stirred little
debate in those instances when the United States was attacked by another
country, the president's authority to send forces into hostile
situations abroad without a declaration of war or congressional
authorization has generated much controversy. The tension reached a head
during the latter years of the Vietnam War. Beginning in 1969, President
Richard Nixon authorized secret bombing raids on neutral Cambodia without
informing Congress. The following year he ordered U.S. forces on
"search and destroy" missions in that country. In 1972 he
directed the mining of North Vietnamese ports, which risked collisions
with Russian and Chinese vessels, and one year later ordered the
carpet-bombing of Hanoi. The president neither sought nor obtained
explicit congressional approval for any of these policies, and he
negotiated the 1973 Paris treaty ending the Vietnam War without
congressional participation. Nixon defended his actions by arguing that
the constitutional distinction between Congress's war power and the
president's commander in chief role had become blurred.

For Congress, this was the last straw. The perception that presidents had
assumed more authority to commit forces than the Constitution's
framers had intended led Congress in 1973 to pass the War Powers
Resolution (also known as the War Powers Act) over President
Nixon's veto. The main purpose of the resolution was to assure that
both the executive and legislative branches participate in decisions that
might get the United States involved in war. Congress wanted to
circumscribe the president's authority to use armed forces abroad
without a declaration of war or other congressional authorization, yet
provide enough flexibility to permit the president to respond to attack or
other emergencies. Specifically, the War Powers Resolution requires the
president to provide written notification to Congress of the introduction
of U.S. armed forces into hostilities within forty-eight hours of such
action. The president must explain the reasons forces were inserted in a
hostile situation, the executive's authority for doing so, and the
scope and duration of the military action. In addition, the president is
required to terminate the use of military forces after sixty days unless
Congress has declared war, extended the period by law, or cannot meet the
sixty-day deadline as a result of an armed attack on the United States.
The sixty days can be extended for thirty days by the president if the
safety of armed forces would be jeopardized by immediate removal. The
president is also required to remove forces at any time if Congress so
demands by concurrent resolutions (known as a legislative veto). In
essence, most members of Congress supported the notion that the president,
as commander in chief, is empowered by the Constitution to lead U.S.
forces once the decision to wage war is made or an attack on the United
States has commenced. What Congress sought with the War Powers Resolution
was participation in the decision to commit armed forces at the beginning
of hostilities.

Predictably, Nixon and all subsequent presidents contended that the War
Powers Resolution was unconstitutional. In virtually every commitment of
U.S. troops since 1973, including the Iran hostage rescue attempt (1980),
military exercises in Honduras (1983), the participation of U.S. marines
in a multinational force in Lebanon (1982–1983), invasion of
Grenada (1983), bombing of Libya (1986), invasion of Panama (1989),
humanitarian mission to Somalia (1992–1994), and bombing of Kosovo
(1999), members of Congress complained that the president had not fully
complied with the War Powers Resolution.

Critics of the resolution argue that Congress has always held the power to
forbid or terminate military action by statute or refusal of
appropriations, and that without the clear will to act the resolution is
ineffective. The sixty-day termination requirement is a major reason why
presidents do not report force deployments to Congress, thereby
undermining the objective of the resolution. The imposition of a deadline,
some critics contend, would signal a divided country to the enemy, which
might then seek to prolong the conflict to at least sixty days, thereby
forcing the president to either seek a congressional declaration of war or
withdraw U.S. forces. Alternatively, the resolution could be seen as a
blank check to commit troops anywhere and for any purpose, subject only to
the time limitations, thereby defeating the intended goal of restricting
the president's warmaking ability. A more fundamental problem is
defining presidential consultation of Congress. Does the War Powers
Resolution require the president to seek congressional opinion prior to
making a decision to commit armed forces, or simply to notify Congress
after a decision to deploy troops has been made but before their actual
introduction to the area of hostility? Such wide differences in
interpretation of the War Powers Resolution would suggest a clear role for
the judiciary.

Surprisingly, the courts have not ruled on the constitutionality of the
War Powers Resolution. The first legal challenge to noncompliance with the
resolution,
Crockett
v.
Reagan
(1982), was filed by eleven members of Congress who contended that
President Ronald Reagan's decision to send military advisers to El
Salvador must be reported to Congress. A district court ruled that
Congress, not the court, must resolve the question of whether U.S. forces
in El Salvador were involved in a hostile or potentially hostile
situation. The Supreme Court declined consideration of a later appeal. In
Lowry
v.
Reagan
(1987), the courts refused to decide whether President Reagan had failed
to comply with the War Powers Resolution when he dispatched naval forces
to the Persian Gulf. A suit was brought by 110 members of Congress,
arguing that sending forces close to the Iran-Iraq war zone required
congressional approval. The district court held that it was a political
dispute to be dismissed "as a prudential matter under the political
question doctrine."

An important question in the post–Cold War world is whether the War
Powers Resolution applies to U.S. participation in United Nations military
actions. During the 1990s the United Nations sent multinational forces to
trouble spots around the world, usually for peacekeeping and humanitarian
purposes. However, after Iraq invaded Kuwait in August 1990, the United
Nations contemplated and approved military force against Iraq. The United
States took a leading role in this effort. Between August and December
1990, President George H. W. Bush deployed 350,000 troops to the Persian
Gulf in response to Iraq's invasion of Kuwait. Although the
president sent reports to Congress describing the buildup, he did not seek
the legislative body's approval. Forty-five Democratic members of
Congress sought a judicial order enjoining the president from offensive
military operations in connection with Operation Desert Shield unless he
consulted with and obtained an authorization from Congress. However, a
federal district court denied the injunction, holding that the controversy
was not ripe for judicial resolution because a majority of Congress had
not sought relief and the executive branch had not shown sufficient
commitment to a definitive course of action (
Dellums
v.
Bush,
1990). On the same day, another federal judge issued a decision in
Ange
v.
Bush
(1990), holding that the courts could not decide whether President Bush
needed congressional permission to go to war because it was a political
question.

Bush claimed that he did not need a congressional declaration of war to
use military force against Iraq. However, to bolster political support for
the commencement of hostilities with Iraq, and to obtain legislative
legitimacy for the participation of U.S. troops in a multinational
coalition, the president requested a congressional resolution supporting
the implementation of the UN Security Council resolution authorizing
member states to use "all necessary means" to restore peace
to the region. The Senate (in a 52–47 vote) and House
(302–131) passed the Authorization for Use of Military Force
Against Iraq Resolution, stating that it was intended to constitute
authorization within the meaning of the War Powers Resolution.
Bush's action during the Gulf War was not unique. The deployment of
U.S. troops to Somalia, the former Yugoslavia, and Haiti by Presidents
Bush and William Jefferson Clinton did not fully comply with the War
Powers Resolution either.

The main point here is that the courts have provided no guidance in how to
interpret the War Powers Resolution, or in whether the resolution is
constitutional at all. Only
Immigration and Naturalization Service
v.
Chadha
(1983), which ruled unconstitutional a one-house legislative veto, has
implications for the legality of the concurrent resolutions section of the
War Powers Resolution. This is because a concurrent resolution is adopted
by both legislative chambers but is not presented to the president for
signature or veto. The larger question of the appropriate amount of
congressional participation in presidential decisions to commit U.S.
troops abroad, a question that the War Powers Resolution tried to address,
remained unanswered by the judiciary.